Throughline - The Supreme Court's Shadow Docket

Episode Date: November 2, 2023

Roe. Brown. Obergefell. Dobbs. These Supreme Court decisions are the ones that make headlines, and eventually history books. But today, the vast majority of the Court's work actually happens out of the public eye, on what's become known as the shadow docket. The story of that transformation spans more than a century, and doesn't fall neatly along partisan lines. Today on the show: how the so-called court of last resort has gained more and more power over American policy, and why the debates we don't see are often more important than the ones we do.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from Autograph Collection Hotels, with over 300 independent hotels around the world, each exactly like nothing else. Autograph Collection is part of the Marriott Bonvoy portfolio of hotel brands. Find the unforgettable at AutographCollection.com. Late into the night on July 13, 2020, Daniel Lewis Lee was supposed to already be dead. But he wasn't. The 47-year-old, missing an eye, white power neck tattoos, had been convicted in 1999 of murdering a family of three.

And on this July Monday, 21 years later, he'd been scheduled to die by lethal injection. But just ahead of the execution, a judge intervened, putting everything on hold. In an order, the judge said before any execution, certain constitutional questions needed answers. The government's lawyers disagreed, which sent the case to the Supreme Court.

Lawyers for the government and for Lee filed briefs, laying out why the execution should or shouldn't move ahead. The government's planned use of pentobarbital is likely to cause extreme, needless pain and suffering in violation of the Eighth Amendment. The Eighth Amendment does not guarantee a prisoner a painless death. Rather, the Constitution prohibits only the superaddition of terror, pain, or disgrace to a capital sentence. Around 2 a.m., the Supreme Court released a decision. Plaintiffs in this case have not made the showing required to justify last-minute intervention. The plaintiff's executions may proceed as planned. It is so ordered.

The U.S. has carried out its first federal execution in some 17 years following a Supreme Court ruling. Daniel Lewis Lee died by lethal injection after an early morning Supreme Court ruling. Overnight, the Supreme Court stepped in. The Supreme Court. The Supreme Court. The Supreme Court. That was just one of many such decisions the court released that July alone. There were a series of really significant rulings in federal death penalty cases in July of 2020, where the Supreme Court was handing down decisions at 2.10 in the morning, at 2.46 in the morning. And it wasn't just death penalty cases. That month, the court also put out orders on issues ranging from COVID-era voting procedures

to then-President Donald Trump's tax returns. The court has had the ability to intervene in emergencies for the better part of 100 years, but it's never used it this way. Overnight, the U.S. Supreme Court ruled in a 5-4 decision that a restrictive abortion law in Texas can remain in place. It was an unsigned and mostly unexplained order that effectively ended abortion in Texas. With some breaking news this evening...

It was an unsigned, unexplained order that allowed President Trump to build the border wall. The president tapped $2.5 billion from the defense budget for the border wall. The Supreme Court has gutted the Voting Rights Act. There were a pair of unsigned, unexplained orders in redistricting cases in Alabama and Louisiana that allowed those states to use congressional district maps that lower courts held violated the Voting Rights Act. There's a lot less transparency, a lot less

briefing, and a lot less opportunity for the public to actually see the work of the court. In recent years, the Supreme Court has released some rulings that come with pages and pages and pages of explanation. Opinions citing precedent and making justifications for rulings about affirmative action, gun control, gay marriage. Big cases that grip the headlines and the national conversation. Those are what's known as the court's merits docket. But those cases represent just a fraction of the court's work. Most of the high court's decisions are about other cases, cases that have had no oral argument, simple order saying, yes, this can happen or no, this can't.

No explanation for why. That slate of cases are what's become known as the shadow docket, and it's changing American life. It's really hard to fully understand the Supreme Court without understanding the shadow docket, where the court is doing controversial stuff and is not explaining itself. I'm Randa Abdel-Fattah. And I'm Ramtin Adablui. On this episode of ThruLine from NPR, how the so-called court of last resort has gained more and more power over American policy, and why the debates we don't see are often more important than the ones we do. Hello, this is Emily from Lompoc, California, and you're listening to ThruLine from NPR.

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Listen now. Professor Steve Vladek is the kind of guy who, when he gets into something, he really gets into it. You are a Mets fan. Yeah, it's a tough life, but you know. His office is decorated with blue and orange Mets gear and with bobbleheads of Supreme Court justices. As a leading scholar of the American court system, Steve Lattic has been teaching about the courts for nearly two decades. He's the author of a recent book all about the Supreme Court. Called The Shadow Docket, how the Supreme Court uses stealth

rulings to amass power and undermine the republic. Not a provocative title at all. Okay, so yes, obviously, it is kind of provocative. I mean, the term shadow docket is kind of provocative. So can you walk us through what exactly is hidden behind that phrase? Chicago law professor named Will Bode in 2015, it was really meant as just an umbrella descriptive catch-all, this evocative term that was meant to capture basically everything the Supreme Court does other than big fancy decisions the court hands down each spring. So we tend to think of the court principally as the sum of those decisions, abortion, affirmative action, student loans. Those big cases, the ones you've definitely heard about, are known as the Supreme Court's merits docket. The shadow docket is, in one sense, the negative space in which the court does everything else. Everything else is a lot of work.

It includes basic administrative tasks, but also higher stakes decisions. Things like blocking a law from going into effect or allowing an execution to go forward. Vladek is most interested in those decisions because over time they've made up an increasing share of what the court does. When does the court first start to shift towards, you know, the shadow docket as we know it today? So I think there are two dramatic shifts, like two real inflection points before the last few years. And the first is in the early 20th century. So if we go back a second, the Supreme Court for its first 101 years as an institution, was basically just a creature of Congress. I mean, yes, the court decided big cases, but its docket was controlled completely by Congress.

The court heard every case Congress told it to and no case Congress told it not to. Like, Congress dictated what the court did. Congress would use its power over the court to intimidate and leverage the court all the time. Congress canceled the Supreme Court's entire 1802 sitting because the Jeffersonians were mad at the Federalists. Congress would take away the court's jurisdiction in cases it didn't want the court to decide. For example, after the Civil War,

Congress divided the former Confederate states into five separate military districts, placing those states under military rule until they met certain requirements. When a Mississippi newspaper editor challenged the legality of this, Congress got worried how the justices might rule, and it actually withdrew the Supreme Court's jurisdiction, meaning they couldn't hand down a decision. So at this time, Congress held all the cards and the Supreme Court's workload was huge. The court is overwhelmed with cases. I mean, by the late 1880s, there's a point where the court has 1,800 pending cases on its docket at one point in time, all of which it's supposed to decide. All of this was a problem, an especially big problem for a man named William Howard Taft.

Yeah, I mean, so, you know, I think insofar as folks know Taft, they know him as a president, right? He's the successor to Teddy Roosevelt. He serves from, right, 1909 to 1913. You know, I think maybe folks know the apocryphal story that he got stuck in a bathtub. But Taft, before he was president and after he was president, Taft was a lawyer. He was a court of appeals judge in the 1890s. He was the solicitor general of the United States, meaning he was the federal government's lawyer in the Supreme Court. And Taft's first love was the Supreme Court. Taft was desperate both to be on the Supreme Court and to make the Supreme Court more powerful. And so even before he's president, while he's president, after he's president, he is pushing for Congress to reform

the court. He's pushing to get the court its own building. And so Taft's vision is that for the Supreme Court to truly play the role he thinks it's supposed to play, it has to be much more autonomous and it has to have much more control over every facet of its work. And when he becomes chief justice in 1921, eight years after he's president, he really like devotes himself to carrying those reforms into effect. And the point of these reforms was to transform the Supreme Court's role from, you know, just a bunch of judges who are the last ones to hear every single case to, you know, a bunch of sort of judicial superheroes who sit back and decide which issues

are worthy of their time and which ones are not. And so the first real shift comes in the early 20th century with the rise of certiorari, with the rise of Congress giving the court more control over its docket. Certiorari, this is a total tongue twister of a term. It just means an order by which a higher court reviews a decision of a lower court. To our ears, that might sound pretty mundane. But at the time, this expanding power of Sushirari gave the Supreme Court much more control over its work. And what that does is it creates this sort of first step process, the are we going to take this case or not process, which is entirely a black box. Right. Congress provides no rules to govern that process. This is the first big transformation because this is the first time the court is given power to do lots of stuff without explaining itself. And that transformation begets the shadow docket because that creates such a transitional time for the court and for the country.

It's also like a transitional time, right? This period, you know, from the 19th into the 20th century. Can you give us a sense of how the context of the time is also shaping the need for kind of this shift on the court? Yeah, I mean, there's a huge explosion in federal law during and after the Civil War. I mean, the Civil War really precipitates this massive and fundamental transformation in the powers of the federal government, the size of the federal government, and the extent to which the federal government is involved in regulating features of Americans' everyday lives. Before the Civil War, you know, the odds that you would ever interact

with the federal government as an American citizen were very low. Before the Civil War, you know, the odds that you would ever interact with the federal government as an American citizen were very low. After the Civil War, right, there's a Department of Agriculture, there's a Department of Education, there's a National Railroad, there's a National Currency. We have the first administrative agencies. And so it really is part of this nationalization and federalization of government where alongside those processes come a much busier federal court system. And with a much busier federal court system comes, you know, one of two possibilities. Either you hire a lot more judges to keep up with all of these new cases, or you give the existing body of federal judges more power to decide how they're going to decide cases. And Congress splits the difference. Congress creates

a lot more judges in the lower federal courts. So there are a lot more trial and intermediate appeals judges created in the 1890s and 1900s. But Congress leaves the Supreme Court alone. The size of the Supreme Court doesn't change from 1869 onwards. And instead, Congress decides to change the court's role. We look around today, we see a Supreme Court that is able to inject itself into virtually every contentious public policy dispute. If the court did not have this kind of control over its docket, it wouldn't be able to do that. Yes. Right?

And it wouldn't be nearly as powerful. The modern court's power comes from the discretion that Congress gave and that the court took to basically set its agenda. There's a kind of negative connotation around its power, around this expansion of its ability to both hear cases and how to hear cases, et cetera. But was this expansion of power actually kind of good for some of the more powerful rulings that came from the court? Sure. I mean, I guess that I am somewhat agnostic, right, about whether certiorari is a good thing. Right. I think what to me is such a critical part of the story is, you know, I want folks to understand that certiorari is a really important thing. Um control to complete control. And it seems to me that there's a happy medium somewhere in between that allows for Congress to assert at least a little bit more control, to exert a little more leverage over the court that I think would be healthier

from a separation of powers perspective. Was there ever a happy medium period? I think so. I mean, like, you know, so between 1925 and 1988, you had this weird mixed docket where, you know, a lot of the court's jurisdiction was discretionary, but a decent chunk of it was still mandatory. Like there were still a number of cases the court had to hear. Could you argue that in that period of time where you were kind of just describing that 1925 to 1980s period where there was a sort of more healthy balance, that was a period of time where arguably the court was a progressive court and was pushing the country forward on things like civil rights issues, on things like, you know, abortion rights. You know, progressives would have said, this is great. The court is ahead of the country and it's taking us in the direction we want to go.

Yeah. I mean, I think the, I mean, the answer is clearly yes, but I think the, you know, the point that I try to make in the book and the point that I think gets lost in way too much of our contemporary public discourse is that if the Supreme Court in the 40s and 50s and 60s had been handing down decisions that were wildly out of sync with public opinion, as opposed to just sort of a step ahead of it, right? Congress would have pushed back. That is the story of the Supreme Court. The fact that Congress doesn't aggressively push back on the court in the 40s, 50s, and 60s, I actually think is a pretty important part of the story that Congress was sort of not endorsing, but at least not standing in the way of what the Supreme Court was doing. Contrast that with the

1930s, right? When you have a very conservative court that is very hostile to the New Deal. And, you know, FDR, he proposes adding effectively six seats to the Supreme Court. How is he able to do that? He's able to do that because there's massive public backlash against the court during that time period. And he takes that backlash for a spin. He, you know, he uses it as a sort of font of power. The court packing plan formally fails. I mean, right, we still have nine justices. But to me, that's a story about the dynamic, about the inner branch dynamic, about how, you know, public pressure and the power the political branches have over the court can be used when the court has gotten too far out of line from

the mainstream. And part of what's, I think, troubling to me about the moment we're in is you might love the current court, you might hate the current court. What to me, I think, can't be denied is this is a court that is not remotely worried about Congress. Coming up, how decisions about death gave the court extraordinary new powers, powers that would set it on a path to remake American life. Hi, this is Bob, and I'm the third shift custodian at a university that I at one point attended. You're listening to ThruLine on NPR. We just want to take a moment to shout out our ThruLine Plus subscribers. Thank you so much for your support. If you don't already know, subscribing

to ThruLine Plus means you get to listen to our show without any sponsor breaks. And you also get access to special bonus episodes where we take you behind the scenes, introduce you to our amazing producers, and tell you about how we make the show. To get these awesome benefits and support our work here at NPR, head over to plus.npr.org slash ThruLine. Support for NPR and the following message come from the Lemelson Foundation, dedicated to improving University of Mississippi, determined to be the first Black man to ever attend the school. He knew that in over 100 years, the school had never let anyone that looked like him in.

When his application was predictably denied, Meredith filed a lawsuit claiming he'd been denied entry due to his race. His case ping-ponged through the courts, with some judges ruling for the school and others for Meredith. Eventually, lawyers asked the Supreme Court to get involved. They said it was an emergency. So before 1980, the way the court handled emergencies was actually pretty cute. The court left it to individual justices to deal with just about every emergency. So the justices are geographically divided. They all have responsibility for one ninth of the country. The idea is that that justice would act as a proxy for the full court. In this case, that justice was Hugo Black.

After reviewing the case, he decided that the school had to let Meredith in. Immediate enforcement of the judgment can do no appreciable harm to the university or the other respondents. The night the news spread that Meredith was allowed to enroll at the school, riots broke out. A mob of angry white people armed with bricks and Molotov cocktails attacked the U.S. Marshals who were on campus to protect Meredith. President Kennedy, A mob of angry white people, armed with bricks and Molotov cocktails, attacked the U.S. Marshals who were on campus to protect Meredith. President Kennedy appealed to the students and to the people of the state to comply peacefully with the law. Americans are free and sure to disagree with the law, but not to disobey it.

Two people died. Hundreds were injured. But despite the resistance, Meredith did go on to graduate from Ole Miss, partially thanks to that ruling from Justice Hugo Black. Law professor Steve Laddick is the author of the book, The Shadow Docket, how the Supreme Court uses stealth rulings to amass power and undermine the republic. He says the court's old system of having a single justice make emergency rulings had a few advantages. Advantage number one is we've all been in this context. Easier to schedule a meeting with one person than with nine.

Right. And so, you know, if it was an emergency, usually you could get you could at least get the justice on the phone. Right. The justices would often in this capacity hold in chambers, oral arguments like by themselves, like, Hey, come to my office and let's chat. Um, they'd write opinions by themselves and this had two upsides. One is it was a fair amount of process. It was actually, it was, it was deliberative in a way that was not the full court, but that was at least, you know, better than nothing. But two, no one ever confused

a single justice's decision for a ruling of the full court. Like everyone understood these were temporary expedience by one member of the court. And that's how things persist, right? All the way through the 1970s. What brings it crashing down is the reinstitution of the death penalty in 1976 lot of rules, a lot more rules than the pre-1972 death penalty. And those rules have to be litigated. And those rules tend to be litigated only once an execution date is set. So that's a posture where you're going to have emergency applications, where a prisoner is going to ask an appeals court, the Supreme Court, to stay their execution while the courts figure out whether they have a viable objection to their conviction or sentence. So, you know, in the 1960s, the court would maybe get three or four

emergency applications a year in death penalty cases. In 1983, it gets 83. And with that uptick, right, the court changes its behavior. So starting in 1980, without telling anybody, the court stops having individual justices resolve most applications. It starts this procedure where if it's remotely divisive, if a justice thinks there's a chance that any two of their colleagues might disagree, they're supposed to refer the application to the full court. So we have a full court decision instead of a single justice decision. And yet, even though the court goes to this full court process, they borrow from the certiorari model, where if it's an order of the full court, they're not going to explain themselves.

And so the court actually stops providing explanations for, you know, grants or denials of emergency relief in contexts in which previously a single justice usually would have. This is a profound shift that nobody notices because it's all in the death penalty space. It's that moment, right, is when the court shifts to this model of full court decisions on emergency applications that are not explained, that are not signed, that are not argued, and that are not fully briefed. Wow. I mean, like, when you sit back and think about that, like, was it the more humane approach to basically say, well, the chance that someone who is innocent will get executed if we don't move quickly increases, was it as well-intentioned as that? So I have a slightly more cynical take. You could argue that these procedural shifts, although they could be justified on sort of efficiency and like collegiality metrics, really were a way of limiting the ability of those justices who are most anti-death penalty to speak for the full court. And you see, starting in the 80s, like a flurry of 5-4 decisions,

where the court is, you know, turning away death penalty appeals. That's extremely dark. I just want to sit with that for a second, because that's extremely dark. It was essentially a more actually efficient way to enact death. It's not just that we start to see the court denying requests for stays from inmates on a much more frequent basis. The even darker part is starting in 82 or 83, we see far more cases where a state goes to the Supreme Court and says, hey, Supreme Court, a lower court sided with the prisoner and blocked the execution. We want you to unblock it. Oh, my God. And so like one of the one of the real shifts in the emergency doc block the execution, we want you to unblock it. Oh, my God.

And so like one of the one of the real shifts in the emergency doc in the early 80s is the rise of Supreme Court orders that un-stay executions. Holy shit. Which I have to say, like, I have more trouble with than denials of stays. Right. Where you're changing the status quo to clear the way for an execution. Right. That's so wild. Because, you know, I think most people would agree it shouldn't be easy for the state to kill someone. Like, it should be a process and they should have to really be able to prove it, et cetera. But essentially, you're saying that that lower court who's like, oh,

there's some problems with this. We need to stop it. No, forget their decision. Like, let's just go ahead and do it. Well, it's worse than that, right? I mean, I've got no problem with the Supreme Court saying, hey, lower court, we disagree with you. The crazy part here is the court is granting emergency relief. The court is saying states are irreparably harmed if they have to wait to execute someone. And again, like very little of this gets explicated because the court is not writing opinions. Even though all of the cases where this was happening were death penalty cases, the procedural shifts, the norm shifts, the change in the court's behavior were not limited in any formal

sense to the death penalty. It was just that's where the fighting was in that time period. So when does it expand beyond the death penalty? That's the mid-2010s, right? So what happens starting in the mid-2010s is that the court, on a far more regular basis, starts to engage in behavior. It had already been engaging it, in death penalty cases for 35 years years in non-death penalty cases. And, you know, whatever the stakes of an individual death penalty case, which are obviously enormous for the prisoner, for the victims, right, for the state, those cases tend not to make law,

right? You know, whether Missouri can execute prisoner Johnson tends not to matter to whether Texas can execute prisoner Smith. Right. And so the sort of the the legal effects of death penalty cases tend to be pretty modest. Right. Versus the U.S. Supreme Court put the brakes on a major part of President Obama's climate change agenda. February 2016, when a 5-4 court blocks President Obama's Clean Power Plan, requiring every state to reduce carbon dioxide in an unsigned, unexplained order, right, versus, you know, June 2017, the major victory for President Trump. The Supreme Court, when a 5-4 court, you know, puts back into effect parts of President Trump's second travel ban, saying that, yes, you can, in fact, ban some foreign nationals.

With very limited explanation and no argument. The president at a meeting with Republican members of Congress cheering his victory. That is the last shift that is really responsible for the current behavior, where now the procedural pathologies that informed the death penalty in the 80s and 90s are being used in contexts that have statewide and nationwide consequences. The Supreme Court has just issued two rulings on one of the president's more controversial measures to battle COVID. A major decision by the Supreme Court last night could have an impact on a close Senate race. The Supreme Court is blocking the Biden administration

from carrying out the rules imposed by OSHA, the Occupational Safety and Health Administration. The Supreme Court must not stand! Illegitimate! Illegitimate! Illegitimate! Coming up, more people start to notice just how much power the Supreme Court has gained and just how little it has to answer for. This is Caron DeMars from San Antonio, Texas. You're listening to ThruLine from NPR. is getting ready to release a major ruling. The case he's presiding over is a big one, a case brought by groups that oppose abortion rights, hoping to take the abortion pill

used in more than half the nation's abortions off the market, a pill called mifepristone. Judge Kazmarek has a long track record of opposing abortion access, and that's exactly what he does. Federal judge in Texas invalidating FDA approval of Mifepristone, a widely used drug and medication abortion. President Biden is vowing to fight this ruling. The DOJ and the FDA have already filed separate appeals. In Washington, D.C., halfway across the country, the Biden administration

isn't ready to see Mifepristone go down without a fight. Vice President Harris told reporters Friday night that courts should not be allowed to tell the FDA what it can do. The federal government and a company called Denko Laboratories, one of the sponsors of Mifepristone, went first to the Intermediate Appeals Court, and then when that failed, went to the Supreme Court and said, hey, we're going to appeal this decision, which we think is terribly wrong, but we don't think Mifepristone should be blocked while we're appealing. And so we want something called emergency relief. This is Steve Vladek, law professor and author of the book, The Shadow Docket, how the Supreme Court uses stealth rulings to amass power and undermine the republic. He says emergency relief means asking the Supreme Court to put a lower court's ruling on hold.

It's a strategy that gained traction in the 1970s to appeal death penalty decisions. And in the abortion pill case, it works. On Friday, the Supreme Court upheld the Justice Department's appeal to freeze a Texas ruling that would roll back FDA approval of Mifepristone. Because of the Supreme Court ruling, while the federal government's appeal moves through the court system, the pill stays on the market. My body, my choice! It was a move applauded by supporters of abortion rights.

But to Steve Lattic, watching this all play out was a scary indication of how the court conducts much of its business behind closed doors. When the Supreme Court issued its stay back in April, basically keeping Mifepristone available on a nationwide basis. There was no opinion. So we don't know why the court froze the lower court ruling. There was no vote count. We don't know how the justices voted. We had no warning that the decision was coming down. It just dropped on a Friday afternoon. In recent years, the Supreme Court's uptick in granting emergency relief and the federal government's uptick in asking for it has let the court make and break policy like never before. What are some examples of how this kind of emergency application starts to just flood the average person's life? I mean, let's just let's just start with the numbers, right? So, you know, President Trump and the Trump administration asked the Supreme Court for emergency relief 41 times in four years. Just to put that in contrast, the Bush and Obama administration, so two separate two-term presidencies with very different

policy priorities, across 16 years asked for emergency relief eight times, right? So it's a 20-fold increase. And what President Trump and his lawyers figure out pretty quickly is that they can use emergency applications as a way of achieving policy victories in cases where they're going to lose on the merits, right? Like maybe it's going to take two or three years before the Supreme Court strikes this policy down, but we can carry it out in the interim. During the Trump administration, this happened again and again. The second iteration of the travel ban, the ban on military service by transgender individuals, right, the border wall, the third country asylum ban, right?

I mean, there are a lot of immigration policies, especially that are blocked by lower court after lower court after lower court. But Trump is allowed to carry out because the Supreme Court steps in and issues a stay. A lot of folks didn't feel the direct impact of these policies if they're not part of immigrant communities. The impact of these policies were felt almost exclusively in immigrant communities and then with the border wall in like the sort of the geographic areas right along the border, right? You know, the transgender military service ban, right? That's a very specific community feeling that impact. And so this is happening in plain sight, but the effects are not really hitting everybody until COVID. And what changes with COVID is that now the court is doing the same thing. It's using emergency applications, but now it's blocking COVID mitigation policies in

blue states. And so, you know, California says we want to do X. The court says no, right? There's an impact. That quickly also dovetails with the 2020 election cycle. South Carolina, right? A federal court in South Carolina says you should not have to get a witness to sign your absentee ballot because you shouldn't have to expose yourself to a stranger, right? Supreme Court says, nope, you got to get a witness, right? So it sort of slowly builds to where people are paying more attention to it.

But I don't think there's any question that the real transformative moment six-week abortion ban to go into effect so that women in Texas woke up on the morning of September 2nd without access to abortion. That really was this dramatic, that brought it home, right, in a way that for various reasons it had been limited to discrete communities to that point. I mean, the way you're explaining this, it sounds like essentially the justices are putting their thumb on the scale of political issues, essentially, in a country. And through this mechanism, without really explaining anything, we're just going to affect it. And it's happening in all sectors of society. Like you said, everything from military service to immigration to whether you can get a vaccine or not know those kind of policies i mean i don't know it makes at least my response is that feeling a little cynical towards that fact that like five or six justices are essentially

making these huge decision political decisions for the country they're like a small legislature of sorts when they act like this so i guess we're for me right i think it's very possible that justices acting in good faith can act very stupidly and in ways that are very institutionally irresponsible. And so I guess one does not have to be like you said, get out a couple of years ahead of an actual court decision. Are the justices not seeing that? I mean, the idea that they're not seeing that happen. Like, if we were to believe that, then we're to believe that these are people who never read the news, who are not that smart in terms of, like, seeing the world for what it is and just live in this little kind of bubble that is, you know, with their robes on and they never leave the grounds of the Supreme Court.

I mean, I don't believe they have to know on some level that this is happening. On some level, sure. But I mean, again, I think this is a difference between the shadow docket and the merits docket, right? So the way the court has become this sort of finely calibrated institutional monster, right? The justices are clearly very deliberate, right? They're deliberate about which cases they take. They're deliberate about when they take them, why they take them. They're deliberate about when they're argued in the calendar, right? When they're decided. And I

think, Ramtin, there's a way in which, at least in the beginning of the Trump era, the justices were not thinking. They were just reacting, right? That these emergency applications were falling on their head. And they're just going one at a time. Do I like this one? Sure.

There's no requirement that you sit back and think about the consequences. There's no requirement that you put into context, right? what this ruling is going to mean for the next case. And so this is like not having to write obviates the justices, right, or exculpates them from the responsibility to actually be deliberate. What do you make of the sort of, I guess, pushback that someone like Justice Alito has made, which is that using the phrase, the shadow docket, which has a sinister connotation, implies this is his quote, he says, implies that the court has been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way. So I just wonder what you make of

his kind of claim that essentially this is a media narrative that is turning the public against the court. Yeah, I mean, it would help, right, if Justice Alito accurately described what the critiques were. And I've written a fair amount. I've given talks sort of directly responding to Justice Alito. The book responds to Justice Alito, right? I do, I mean, I think the court has to have some ability to deal with emergency applications, right? I think, you know, it is inevitable that there are going to be cases where the court may not have time to write a fully formed opinion. But the notion that there are going to be a few examples, right, and that that therefore justifies every single thing the court has done over the last six years. Like that's the disconnect in the Alito defense.

Guys, we could look at any one of these orders, right, any one of these rulings and come up with some plausible, defensible, principled justification for why the court did what it did. Right. The problem is that when you put them all together, what you see across the entire data set of all of the court's behavior in the last six years are latent inconsistencies where whatever the principle might have been that explained ruling number one, it doesn't explain ruling number two. And the principle that might have explained ruling number two doesn't explain ruling number three. And this is the charge Justice Kagan levels in her dissent in the Texas abortion case. She says it's the inconsistency that makes this impossible to defend because it really makes it look like power that we all agree we ought to have is being used not in the service of

substantive principles, but just political preferences. And just let me sort of use a couple of cases to illustrate this, right? I mean, so back to immigration for a second. That's the richest data set of Trump cases. And you could really have really good arguments for why the court intervened in all those cases. But when President Biden comes to office, and some of his immigration policies are subjected to nationwide injunctions in lower courts. And he goes to the Supreme Court and asks for emergency relief. He doesn't get it. Right.

How do you explain? Right. Like at this point, right, a conservative might say, well, maybe the court just thought that Biden's policies were illegal and Trump's policies were legal. Ironically enough, it's the other way around. Right. were illegal and Trump's policies were legal. Ironically enough, it's the other way around, right? The two biggest immigration cases where Biden's gone to the court for emergency relief and been turned down, he won on the merits. The court ruled for the Biden administration.

So, like, the problem is, again, like, now I sound like I'm being cynical, but the problem is that, like, you know, when Alito gets up and defends the court's behavior, he doesn't engage the inconsistencies. He just denies that they exist. It feels like this kind of like culmination of this shift that, you know, began with Taft and over the last kind of century has progressed to this point. It feels like it's really cemented a bigger trend, which is the court becoming more and more ascendant, like, beyond any sort of checks and balances. One of my favorite quotes from the Federalist, James Madison in Federalist 51, says, ambition must be made to counteract ambition, right? We're not going to hermetically seal the branches from each other. We're going to empower them to be aggressive against each other. And the idea is that if they if they're if all three are pushing against each other. Right. They will keep each other in line. Right. And, you know, I think what we've seen in the last 25, 30 years, which is that as Congress has stopped being quite so ambitious in imposing institutional checks on the other branch.

That branch has just arrogated more and more power. What you see is an institutional power dynamic that we ought to all be worried about, even if we actually like the short-term yield that it's producing. What would be the arguments for the advantages of using the shadow docket the way it's used? Well, I mean, again, I think we should separate out certiorari from emergencies. I mean, on the certiorari front, I mean, the advantages are, you know, efficiency, right? The court only takes the cases that the justices want to take, right? They do no work that they don't want to do. Like, who wouldn't want that job? Who wouldn't feel better in a job where they have no responsibilities other than the ones they give themselves, right? The court would say it allows them to spend more

time thinking about the big questions because they're not troubled with the little questions, right? You might even say it gives more respect to lower courts because a higher percentage of rulings from the lower courts are going to be the last word. So, certiorari has defenses. On the emergency relief front, I mean, frankly, like, I think all of the defenses are defenses of an idealized version of what the court is doing that most of us could get behind, right? Like, the notion that the court should have this power. Sure, it should. Right. The notion that there are going to be cases where the court won't have time to explain itself. Yeah. True. But like when the court is upsetting the status quo and when it has time to tell us why. Right.

I don't know what the argument is for why it's better for the court to not tell us. Yeah. I mean, it seems intentionally opaque. And also at a time when I think, you know, trust in the court is extremely low. It seems like it's just going to add more fuel to the distrust that many people feel towards the court right now. I think trust is actually a really good way of thinking about it. A lot of what has happened has eroded trust where we're not inclined to give the court the benefit of the doubt. And historically, the best defense that the court had to charges of bad faith and to charges of, you know, bad faith and to charges of misbehavior was substantive justifications. The court itself has said our power, right, our moral authority as a court

doesn't come from, you know, any sort of physical force. We have no army, right? It comes from our ability to provide principled justifications for our decision making, not because we're going to necessarily agree with the principles being espoused by a majority in any particular case, but hopefully we'll at least agree that they are principles. And, you know, even if we might think that there are justifications in any one of these cases for the justices to be intervening, there are two problems. One, they're not giving us those justifications. And two, when you put the whole data set together, when you bring all the receipts, you start to see serious inconsistencies in how the court is intervening, when it's

intervening, right? Intervening not necessarily to protect a particular legal principle, but to protect a particular type of party. Do you see a point at which the skepticism, the distrust, the growing use of the shadow docket leads to a reckoning where the court, one of the real predicates to us getting to that point is to stop talking about the court as if it were only the merits docket, right? In a world in which our conversation about the Supreme Court is, you know, what we think of Dobbs or what we think of affirmative action, right? We're never going to get past the notion that efforts to reign in the court are just partisan and that they're just efforts to sort of have the court be political in the other direction, right? To me, like the conversation that I think we have to start having is, you know, how do we think about the court in ways that

Democrats and Republicans might agree, right? What are problems with the current court that we might actually forge consensus on that Congress ought to fix? How do we build back the notion that it's in all of our interests for Congress as an institution to assert leverage over the court? I think it has to start with some pretty important people who are in the middle, right, saying something is rotten in Denmark. We reached out to the Supreme Court for comment on this episode. They didn't respond. And that's it for this week's show.

I'm Randa Abdel-Fattah. I'm Ramteen Arablui. And you've been listening to ThruLine from NPR. This episode was produced by me. And me and... Lawrence Wu. Julie Kane. Anya Steinberg.

Casey Miner. Christina Kim. Devin Katayama. Peter Balanon Rosen. Akshara Ravishankar. Irene Noguchi. Fact-checking for this episode was done by Kevin Vocal. It was mixed by Josephine Neonai.

Music for this episode was composed by Ramtin and his band, Drop Electric, which includes Anya Mizani. Naveed Marvi. Sho Fujiwara. Thanks also to Johannes Durge, Claudia Liz Schultz, and Jade Ernest. Thank you to Christina Kim, Lawrence Wu, Peter Balanon-Rosen, and Devin Katiyama for their voiceover work. And as always, if you have an idea or like something you heard on the show, please write us at ThruLine at NPR.org. Thanks for listening. Grammarly is a secure AI writing partner that understands your

business and can transform it through better communication. Join 70,000 teams who trust Grammarly with their words and their data. Learn more at Grammarly.com. Grammarly. Easier said, done.